ExxonMobil lawsuit (re Aceh)

In 2001, eleven Indonesian villagers filed suit against ExxonMobil in US federal court alleging that the company was complicit in human rights abuses committed by Indonesian security forces in the province of Aceh. The plaintiffs maintain that ExxonMobil hired the security forces, who were members of the Indonesian military, to protect the natural gas extraction facility and pipeline which ExxonMobil was operating. The plaintiffs further claim that ExxonMobil knew or should have known about the Indonesian military’s human rights violations against the people of Aceh. The plaintiffs allege that they suffered human rights violations, such as murder, torture and rape, at the hands of these security forces.

On October 14, 2005, a US federal judge ruled that the plaintiffs’ case may proceed on District of Columbia (DC) state law claims (which include wrongful death, theft by coercion and assault and battery), but he dismissed the plaintiffs’ federal claims under the Alien Tort Claims Act and the Torture Victim Protection Act. On March 2, 2006, a US federal judge denied a motion to dismiss filed by ExxonMobil, and ordered the parties to proceed toward discovery in this case. In January of 2007, the US Court of Appeals for the DC Circuit denied ExxonMobil's appeal of the lower court's denial of its motion to dismiss. Additionally, the court of appeals denied ExxonMobil's petition for a writ of mandamus to compel the lower court to dismiss the claims against the company. In July of 2007, ExxonMobil appealed to the US Supreme Court (petitioned for a writ of certiorari). On 13 November 2007, the US Supreme Court invited the US Solicitor General to file a brief expressing the views of the executive branch on this petition. On 16 June 2008, the US Supreme declined to hear this case. On 27 August 2008, the US District Court for the District of Columbia ruled on a motion for summary judgment filed by ExxonMobil; the judge declined to grant the defendants’ motion. The judge found that the plaintiffs had presented sufficient preliminary evidence to support their allegations of abuse and therefore the case should be submitted to a jury for trial. On 30 September 2009, the US District Court ruled on another motion to dismiss from the defendants. The judge granted ExxonMobil's motion to dismiss the case finding that the plaintiffs did not have standing to bring the case in a US court. On 8 July 2011, the Court of Appeals reversed the district court's dismissal of the case, finding that a corporation should not be immune from liability under the Alien Tort Claims Act. The court remanded the lawsuit to the lower court. ExxonMobil filed a motion with the Court of Appeals on 8 August 2011 asking the court to rehear the case en banc. In September 2014, a US federal court held that Indonesian villagers from the Aceh province can proceed with their claims against ExxonMobil. In a decision issued in July 2015, a US federal court ruled that the plaintiffs' claims sufficiently "touch and concern" the United States and may proceed in US court.

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The U.S. Supreme Court insulated multinational corporations from some lawsuits over atrocities abroad, scaling back a favorite legal tool of human rights activists. The justices threw out a suit accusing two foreign-based units of Royal Dutch Shell Plc of facilitating torture and execution in Nigeria. The majority said the 1789 Alien Tort Statute generally doesn’t apply to conduct beyond U.S. borders. In the Shell case, “all of the relevant conduct took place outside the United States,” Chief Justice John Roberts wrote for the court. The justices were unanimous on the outcome in the Shell case, while dividing in their reasoning… Human-rights advocates said before the Supreme Court decision that a ruling favoring Shell would undermine the ability of atrocity victims to hold their perpetrators accountable. Alleged victims have invoked the law more than 150 times in the past 20 years. [Also refers to ExxonMobil, Cisco, Chiquita, Siemens, Daimler, Rio Tinto]

In June 2001, John Doe III and 10 other civilian neighbors of ExxonMobil's Arun natural gas facility filed a lawsuit against ExxonMobil in federal district court in Washington, DC. In John Doe v. ExxonMobil, the villagers charge the company with complicity in torture, arbitrary detention, and extrajudicial killings allegedly committed by Indonesian soldiers it hired to provide security. ExxonMobil has steadfastly maintained its innocence in the case. "We have fought the baseless claims for many years," said ExxonMobil spokesman David Eglinton… But in a 2008 ruling, federal district court judge Louis Oberdorfer ordered Exxon to face trial… The fate of the ExxonMobil case now rests in the hands of the US Supreme Court. On October 1, the court heard arguments in a similar…case, Kiobel v. Royal Dutch Petroleum (Shell)—and it's that case that may determine whether the Acehnese villagers ever get their day in federal court.

Author: Professor John Ruggie, Harvard Univ., former UN Special Representative on business & human rights

On October 1, 2012, the United States Supreme Court will rehear arguments in a landmark case...Kiobel v. Royal Dutch Petroleum...brought by Nigerian plaintiffs against Shell...alleging that the company aided and abetted the Nigerian military dictatorship in the 1990s in the commission of gross human rights violations, including torture, extra-judicial execution, and crimes against humanity... Should the corporate responsibility to respect human rights remain entirely divorced from litigation strategy and tactics, particularly where the company has choices about the grounds on which to defend itself? Should the litigation strategy aim to destroy an entire juridical edifice for redressing gross violations of human rights, particularly where other legal grounds exist to protect the company’s interests? ... I don’t know what the correct answers to these questions are… What I do know is that if, on top of the many other reputational and legal challenges it has faced over the years, Shell also ends up being held responsible for so radically constricting the ATS, its road back to the corporate social responsibility fold will be long and hard. [also refers to lawsuits against Unocal (now part of Chevron), Total, ExxonMobil, Talisman]

The human rights group EarthRights International wants answers about the government's amicus brief in the upcoming U.S. Supreme Court rehearing of Kiobel v. Royal Dutch Petroleum, which will determine whether victims of international human rights violations can sue in U.S. courts. In Kiobel's first trip to the Supreme Court last term, the U.S. government sided with the plaintiffs…But when the justices sent the case back to the parties…-- the Justice Department switched sides…The State Department, which had joined Justice in signing the first Kiobel amicus brief, pointedly did not sign the second one…EarthRights has sent Freedom of Information Act requests to the Justice Department, the Solicitor General's office and the State Department, asking for any records related to [Attorney General Eric] Holder, [Deputy Solicitor General Sri] Srinivasan and the Kiobel case, including any communications from business groups that sought to influence the Justice Department. [also refers to Chiquita, ExxonMobil, Ford]

The following submission is in response to the Institute for Human Rights and Business...& Shift’s public call for comments on its proposed discussion paper relating to the oil and gas sector for the European Commission’s consideration...
Key Human Rights Impacts...Impacts on the rights to property and an adequate standard of living...rights to free, prior and informed consultation and/or consent...rights to health, clean water and food...rights of vulnerable groups...
Contextual Factors...Host state governance in SEA [Southeast Asia]...
Key Process Challenges...Embedding respect for human rights in a company...Measure effectiveness of company responses to human rights impacts...
[refers to Shell, Freeport-McMoRan, Unocal (now part of Chevron), Total, MOGE, Petroleum Company of Thailand (PTT), Asia Pulp & Paper, Bursa Malaysia, Singapore Exchange (SGX)]

Author: Christine Bader, fellow at Kenan Institute for Ethics of Duke Univ. and at Truman National Security Project [USA]

In a speech...at the Council on Foreign Relations, ExxonMobil CEO...spoke about energy security, which he defined as “securing access to energy in a reliable, relatively affordable way.” He...emphasiz[ed] the technology his company invests in to mitigate environmental risks, saying that “as long as we as an industry follow good engineering practices and standards, these risks are entirely manageable.” However, energy security is fundamentally about social risk, which cannot be engineered away...Ground Zero of energy security is not macro but micro, comprising the hundreds of individual projects of companies like ExxonMobil around the world. The stability and continuity of these projects is the direct responsibility of the operating companies...Yes, technology is important...But companies cannot focus solely on technological innovation while ignoring the human dimensions of their business.

Global corporations often think they are above the law, but for more than a decade some of the most egregious human rights and environmental violators have had to answer for their overseas actions in U.S. courtrooms. It now appears that the conservatives on the Supreme Court want to put an end to this key tool of corporate accountability. The controversy surrounds a once-obscure 1789 law known as the Alien Tort Statute or the Alien Tort Claims Act (ATCA). It allows foreign citizens to bring civil actions in U.S. courts involving violations of international law or a treaty signed by the United States. The long dormant law was revived in the 1980s by the Center for Constitutional Rights (CCR) as a vehicle for pursuing individual human rights violators and later came to be used against corporations as well. [refers to Chevron, Coca-Cola, ExxonMobil, Rio Tinto, Shell, Unocal (part of Chevron)]

Author: Robert A. Schwinger, Thomas E. Butler All Articles, National Law Journal [USA]

A number of recent appellate decisions have reached conflicting outcomes on whether liability under the Alien Tort Statute...extends to corporate entities. While the resolution of this judicial conflict will likely turn on particulars of statutory interpretation, the courts should consider in these analyses a principle...: that the courts should avoid having liability turn on artificial distinctions that look to the form of an enterprise's structure but ignore its reality. To do so, as the U.S. Supreme Court has noted, artificially distorts the market by dissuading companies from choosing those structures for their operations they consider most advantageous. Whatever the merits might be of expansive Alien Tort Statute liability in the international business context, no good purpose is served by construing that statute so that it ends up governing which business structures are used to conduct foreign operations. [refers to Exxon Mobil, Firestone, Coca-Cola, Drummond, Copperweld, Shell, DelMonte]

The Alien Tort Claims Act (ATCA) is a U.S. statute enabling aliens to sue in American civil courts for certain egregious human rights violations. It has come to be the tool wielded for most international human rights litigation against corporations. This article explores the potential ATCA liability resulting from corporate trans-boundary environmental abuse through consideration of BP and the 2010 Gulf oil spill. This hypothetical “case” demonstrates that though an ATCA claim against BP would likely fail based on the ultimate concentration of damage to U.S. territory, had the damage primarily hit foreign waters, shores and communities, the prospects of bringing an ATCA claim are real and present. Further, the symbolic repercussions of such a claim could develop both international law and industrial standards.

Recent court rulings on the question of whether oil companies and other multinationals can be sued in U.S. courts for alleged human rights violations overseas has made the issue ripe for Supreme Court intervention...Although it is notoriously tough to predict whether the high court will take a case, the chances appear reasonably high in large part because there is a split within the federal appeals court on the issue. There is also the possibility that the court could pass on Kiobel but then take up one of the other cases at a later date. "Although it's not clear which of the individual cases the court will review, it seems to be virtually certain that the justices will take up this question within the next two terms," said Supreme Court expert Tom Goldstein of the Goldstein, Howe & Russell law firm...Attorneys for the corporate defendants dispute whether the 11th Circuit has really tackled the question head-on. They also have high hopes that the D.C. Circuit will reverse itself after the en banc rehearing...

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